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Overview and Assessment of
Approaches to Access Enforcement
2001-FCY-8E
INTRODUCTION
The great danger in the Legislature endeavouring to arrange the disputes of husband and wife is lest they should lose sight of that which ought to be the primary object of all courts of justice—the conservation of the rights of the children.
Lord Chancellor Cottenham, British House of Lords, July 18, 1839
Purpose
In February 2000, the Child Support Team of the Department of Justice Canada commissioned an overview and assessment of legal approaches to access enforcement. The purpose of this project was to produce a comparative review of legal approaches to the problem of enforcement of access orders, and to investigate and analyze Canadian case law and legislation.
Method
Information for this report was collected through a review of the legislation governing access in Canada (summarized in Appendix A), Canadian and international literature on access issues, and Canadian case law on access. In addition, the author contacted researchers, academics, government officials and practitioners from across Canada and from the United States, Australia and Europe (see Appendix C) for information and comment. The author also visited Michigan’s Friend of the Court program, and interviewed government officials connected with that program and members of Michigan fathers’ rights groups.
Overview
This report looks at the problem of enforcement of access in the context of disputes between parents. Enforcement of access in the context of child welfare or adoption cases will not be considered, and special issues raised by access orders in favour of non-parents are not addressed.
The report first reviews the literature from Canada, the United States, Australia and Europe on the nature and scope of access denial and of failure to exercise access. Strengths and weaknesses of available data on denial of access and failure to exercise access are discussed.
The report then examines legal approaches to access enforcement in Canada. The legislative frameworks and laws governing access enforcement in Canada (summarized in Appendix A) are assessed to determine whether there is compatibility, consistency or gaps among them. Legislative approaches that are more effective are identified. The range of legal measures for dealing with access denial is discussed. Canadian case law is analyzed to determine how judges are actually dealing with access denial.
The next part of the report examines legal approaches to access enforcement in the United States, Australia and, to a limited extent, Europe. The legal remedies for access denial available in these jurisdictions are outlined, and the extent to which preventive and alternative methods, such as mediation, have been adopted is addressed. Particular attention is given to Michigan’s Friend of the Court program and to recent legal reforms and debates on access enforcement in Australia.
The report concludes with a discussion of how the legal framework governing access enforcement in Canada could be improved. Recommendations for reform are based on the literature review, the analysis of legal approaches to access enforcement in Canada, and the comparative examination of approaches adopted in other jurisdictions.
The overarching theme of this report is the importance of adopting a child-centred approach. This is in keeping with nationally and internationally accepted principles and with the strategy Canada is following for reform of custody and access laws:
There is a need to explore changes that can be made to the legal rules, principles and processes to better structure the decision-making process in a child-focused way and shift the current focus of the family law system from parental rights to parental responsibility (Canada, 1999a).
More than 160 years ago, when England enacted its first statute relating to access, Lord Chancellor Cottenham, as quoted above, took a child-focussed approach and cautioned legislators to not lose sight of their primary objective—the conservation of the rights of children. Fathers and mothers continue to invoke the rights, wishes or interests of children and to make selective use of social science evidence to support their claims. Children themselves, meanwhile, often have no voice in individual custody and access disputes, and are often ignored or given little attention by lawmakers. This report attempts to sift through the competing claims and assumptions and to keep its focus on children.
